Mental Capacity (Amendment) Bill [ Lords ] (Sixth sitting)

Debate between Tanmanjeet Singh Dhesi and Baroness Keeley

Tuesday 22nd January 2019 Public Bill Committees

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

We have referred to the code of practice, or the Minister has, on several occasions. We have consistently asked for it to be published. Surely the provisions would be nonsensical without it given we are being referred to it in relation to so many of the provisions we are arguing for. If a code of practice does not exist, where does that leave us in this whole scenario?

[Barbara Keeley]

Indeed. It is salutary to use the following quotation again:

“Whatever the weight given to the Code by section 42 of the Mental Capacity Act 2005, it does not create an obligation as a matter of law to apply to court in every case.”

We have wanted to know what is in the code of practice. We think knowing what is in it is important in deciding our position on what is in the Bill. The Government have declined to put too many aspects in the Bill and have instead favoured the code of practice. When legislation and codes of practice exist together, they are drawn up together and published together. That has not happened in this case and it is the wrong approach. We cannot leave crucial details about how a new system of protections would work, including what resources will be given to it, to a code of practice that has not been drawn up yet, but that is what the Government have done.

On the first day of this Committee the Minister said that she would supply Committee Members with a list of what should be contained in the code of practice, and I thank her for doing so last night. Unfortunately, that does not answer many of our concerns. For instance, we raised concerns about the length of authorisations. It is welcome that there will be guidance in the code of practice, but we still do not know what it will say. Similarly, the Minister’s letter says that the code of practice will contain

“guidance on the necessary separation and operation independence from any independent hospital an AMCP is conducting a review in”.

Again, I am glad that there will be guidance, but we still do not know what it will be. Nothing prohibits any of the relationships we are concerned about and have discussed at length: it simply says that some relationships may be prohibited. That is simply not good enough at this stage. As such, the Minister’s letter does not answer the concern of my hon. Friend the Member for Slough. We remain worried that there will not be proper oversight of this code of practice. Without seeing the full code, we cannot be certain that its contents are sufficient or appropriate.

Overall, the Government’s approach of constantly mentioning the code of practice as being the place where whatever is not in the Bill will be plays fast and loose with the rights and liberties of cared-for people. It further reinforces the mess that the Government have made of the Bill by rushing it through Parliament. Had they done the sensible thing and paused the process, they would have had time to draw up a draft code of practice so that we could consider it alongside the Bill, as is commonly the case. They have given reassurances that many of the concerns can be addressed in subsequent regulations and the code of practice, but that is simply unacceptable to those of us on the Opposition Benches. To that end, we have tabled the amendment to ensure that the Bill cannot be enacted until a code of practice has been published and approved by votes in both Houses, rather than just published.

An important principle that I want to discuss briefly is that legislation can begin in the House of Lords where it is deemed to be non-controversial. That was not the case with the Bill. It is not simply a reproduction of the Law Commission’s draft Bill, which was widely consulted on. As the recent media coverage in places such as The Guardian has shown, the Bill is not without controversy. The code of practice should not be passed through a negative resolution procedure in secondary legislation on the grounds that it is non-controversial. The Minister has indicated that the code of practice will have a real vote in both Houses. Let us see whether that will be a meaningful vote.

Mental Capacity (Amendment) Bill [ Lords ] (Fourth sitting)

Debate between Tanmanjeet Singh Dhesi and Baroness Keeley

Thursday 17th January 2019 Public Bill Committees

[Barbara Keeley]

Much of our conversation on the Bill has so far focused on the role of approved mental capacity professionals, when they should be appointed and who they should be. We have given this topic so much time because AMCPs are a fundamental safeguard built into the proposed LPS system. This independent review process will prevent the deprivation of liberty from being applied for and approved within one system.

We tabled several amendments designed to strengthen the provisions of this safeguard and prevent anybody from being wrongly deprived of their liberty. I am sorry that the Government have not accepted our amendments, which would have provided for more people to have access to an approved mental capacity review. These reviews would have ensured that it is not only people who actively object to arrangements or are in independent hospitals who have access to the safeguard that an AMCP review would provide.

None the less, we are determined to continue to improve the Bill, so that those people who do not have access to an AMCP review are treated properly. Amendments 42 and 43 provide for AMCPs to meet the cared-for person in all cases that they review. We just had a little exchange about this, and the Minister seemed to say that there would always be meetings. I hope she meant that.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

On requiring the AMCP to meet the cared-for person before making their determination, the wording—

“appropriate and practicable to do so”—

is just not correct. Does my hon. Friend agree that we have a duty of care to each and every individual? Surely each and every life is as important as the next. We must do our level best in all circumstances, not only when it is appropriate and practicable to do so.

Mental Capacity (Amendment) Bill [ Lords ] (Second sitting)

Debate between Tanmanjeet Singh Dhesi and Baroness Keeley

Tuesday 15th January 2019 Public Bill Committees

[Barbara Keeley]

I agree with my hon. Friend, who makes a good point.

In essence, the case outlines the situation that the Government propose in the Bill. The care home provided reassurances to the local authority that the situation was appropriate and necessary, which lengthened the time that the young man spent in that inappropriate setting. The local authority accepted those reassurances, including when the case was reviewed. The end result was that somebody—this young man—was held inappropriately for two years.

To protect against that, we want all cases to be initially authorised by an independent body, which would organise the assessments and consultations itself. Because it would do that, the care home would not be able to provide initial assurances that may turn out to be incorrect. That would provide another layer of protection against people being wrongly deprived of their liberty.

We have been told that paragraph 20(1)(a) of schedule 1, which would allow care home managers to carry out the consultation with the cared-for person and others, is of concern. I have heard of cases where care homes decide to cut off contact between a cared-for person and their family, often on highly dubious grounds. As the hon. Member for Halesowen and Rowley Regis said this morning, in some cases that may be because the family are not helping the situation. However, in other cases—I am afraid to say that this applies to most of the examples that I have encountered—it is purely because the family object to something that is being done.

Fear of something like that happening can make it hard for someone to stand up to the people providing the care, whether they are the cared-for person or somebody close to them. The risk of having contact cut off, or the risk of reprisals when there is nobody there to object, can make people compliant even when they do not want to be.

I ask hon. Members to picture this situation: neither the cared-for person nor their family are confident enough to stand up to the care provider and object to the support that is being developed, and then that very same care provider asks them if they have any objection to a deprivation of liberty being granted. How many cases can Members imagine in which nobody says anything, not because they do not want to but because they are scared of the consequences?

One such case would be too many, but I suspect that there will be many more. I will raise two cases now in which such a situation could have been an issue. In one case, a resident—Mr A—had removed his hearing aid and his daughter had had to shout to make herself understood. She was then accused of bullying him and of other misdemeanours, and she was banned from the care home. She had been a regular visitor and had helped with many personal caring tasks. She was subsequently informed that the matter had been referred to safeguarding and that a DoLS referral had been made. The investigation made it clear that the restrictions had been imposed because she had asked a number of questions about the deterioration in the home’s standards of care, which the care home manager was finding difficult to answer.

In another case a daughter, Ms B, was concerned about her father, Mr B. Against all attempts to prevent it from happening, Mr B had been placed in a care home. Ms B felt that that was against both his wishes and his best interests, which is the important point that was just made. However, both the care home manager and her stepmother were content with the placement. Mr B’s behaviour quickly became increasingly aggressive and he made repeated attempts to leave the home, including by climbing out of a window. His daughter’s visits were then blamed for his behaviour. As a result, the care home manager prevented him from meeting friends outside the home and Ms B was asked not to visit the home.

In both those cases, relatives with a valid interest in a cared-for person’s welfare were restricted—on spurious grounds—from having contact with them. In both cases, the main “fault” of the relative was to express concerns about the care that was being delivered. If expressing negative views about a person’s care can get a relative banned from seeing them, of course people will be reticent about making their feelings known when they are consulted by the care home manager.

[Mr Dhesi]

My hon. Friend is making a very powerful point. Hopefully the Minister will acknowledge that if family members are excluded from the care process, alarm bells should ring throughout the entire process, because so often for vulnerable individuals their family members are the only people who visit them. That is why we need to ensure that family members have a connection with them in the future.

[Barbara Keeley]

By moving this responsibility in the Bill to local authorities, which currently have this responsibility, we can ensure that people are more confident about expressing their feelings. The consultation process should act as a crucial safeguard to prevent people from being deprived of their liberty against their wishes. Without our amendments, I am afraid that all too often the Bill will not achieve its purpose.

I turn now to the burden of work that the Bill will place on care home managers, because that is an important aspect. I hope that I have made it clear that I do not think that it can ever be appropriate for a care home manager to have a role in this process, but more than that there is no evidence that care home managers want this role or could carry it out. There is currently a vacancy rate of 11% for registered care home managers—11% of care homes do not even have a manager. That is higher than for any other role in the care sector. Care home managers are overworked in many cases, having to manage care homes that are operating on increasingly narrow margins. They are not experts in mental capacity nor trained to carry out assessments. In short, the role that they may be given is not one that they are prepared for or want.

Given that they are overstretched, we can expect them to make mistakes on occasion—that is understandable. When people are placed in high-pressure environments and expected to do more than they reasonably can or want to do, something has to give. We should not be in a situation where that something is the proper process for the authorisation of the deprivation of somebody’s liberty. It would not be acceptable if the result of the Government’s underfunding of social care was that people had their liberty taken away based on a tick-box exercise by a care home manager who lacks the time and skills to do any more.

I understand that the Government estimate that it will cost just £20 to train a care home manager to carry out this role. I think it was said at a recent meeting of the all-party parliamentary group on social work that it takes years to train a social worker to get to the point of carrying out assessments. Twenty pounds represents perhaps half a day of training. The idea that after a few hours a care home manager will be able to go out and manage liberty protection safeguards is not plausible. These complex issues should be carried out by people who have experience and expertise.

As we heard earlier, local authorities already have teams dedicated to deprivation of liberty safeguards, so it seems a wasted opportunity not to use that resource. Ultimately, it would not even save money.

Mental Capacity (Amendment) Bill [ Lords ] (First sitting)

Debate between Tanmanjeet Singh Dhesi and Baroness Keeley

Tuesday 15th January 2019 Public Bill Committees

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

Does my hon. Friend agree that, with regard to 16 and 17-year-olds, we need to ensure there is provision for parents or guardians to object to care arrangements? If that has an impact on their child’s deprivation of liberty, that is not an acceptable situation.

[Barbara Keeley]

I agree with my hon. Friend, and we will talk specifically about that later.

The Court of Protection exercises powers under the Mental Capacity Act 2005, under section 25 of the Children Act 1989 or its inherent jurisdiction, or under the Mental Health Act 1983, should that young person require in-patient treatment. The limited protection safeguards created by this Bill introduce a new administrative process as an alternative means of authorising a young person’s deprivation of liberty, and that is why we have to be careful.

In one sense, having this alternative means of authorising a deprivation of liberty of a young person is desirable, in that it may address some problems associated with the cost of making an application to the courts under the pieces of legislation I just referenced. The liberty protection safeguards might also act as an appropriate and proportionate bulwark in cases where care arrangements are not contentious, due to the type of care that is provided, the level of restrictions imposed and the consensus on the suitability of arrangements. For instance, if the placement meets with the young person’s approval and has been made with the agreement of the young person’s parent—a point that my hon. Friend the Member for Slough raised—in relatively straightforward cases, the extension of liberty protection safeguards might act as a convenient and straightforward mechanism.

Mental Capacity (Amendment) Bill [Lords]

Debate between Tanmanjeet Singh Dhesi and Baroness Keeley

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Tuesday 18th December 2018 Commons Chamber

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I beg to move an amendment, to leave out from “That” to the end of the Question and add:

“this House declines to give a Second Reading to the Mental Capacity (Amendment) Bill, notwithstanding the need for reform to the current system of mental capacity assessments and while acknowledging the improvements made to the Bill by the House of Lords, because the Bill underwent no pre-legislative scrutiny, it does not put the interests of the cared-for person at the heart of the Bill, it enshrines a conflict of interest in relation to independent providers of health and care services, it fails to provide measures to reduce the substantial backlog of Deprivation of Liberty Safeguards Assessments and it fails to recognise explicitly the interface with the Mental Health Act when determining which legislation should be used to authorise care or treatment arrangements.”

The issue before the House today is one of fundamental importance to us all: the individual liberty of vulnerable people. Today, we are being asked under which conditions it is right to deprive vulnerable people of that liberty when they need care and treatment and cannot give their consent, and what protections should be in place when their liberty is taken away.

The proposals in the Bill to replace deprivation of liberty safeguards have the scope to affect the rights of a large portion of the 2 million people in the UK thought to lack capacity to make their own decisions. Among them are people with dementia, learning disabilities, autism and brain injuries. Whether to deprive some of the most vulnerable people in this country of their liberty should be an issue that we treat with the utmost respect, thought and care. However, I am afraid the Government’s approach to this immensely important issue has shown few of those qualities.

The reform of the Mental Capacity Act 2005 requires methodical planning, but the truth is that the Bill has been rushed through without proper scrutiny, despite the best efforts of many people who are concerned about its contents and have been working to change it for the better. The fact that the Bill has less than two hours for Second Reading and was brought forward with just two sitting days’ notice speaks volumes of the speed that the Government are adopting in respect of the Bill, and will raise further concerns among those who care about these matters.

The process of reforming the 2005 Act began when the Law Commission produced a draft framework for new liberty protection safeguards to replace the existing deprivation of liberty safeguards. That came after two years of painstaking work and wide consultation ended last year. The Government accepted the commission’s proposals at the time they were produced, but the Bill that was introduced to the House of Lords has diverged substantially from the original recommendations— an issue on which the Secretary of State answered a question earlier. At the outset of the process, the draft Bill published by the Government was subject to no prelegislative scrutiny whatsoever, meaning that important stakeholders were not consulted about its contents.

During the Bill’s passage through the House of Lords, my colleagues and I heard many concerns about it from interested stakeholders, from charities representing people with dementia, learning disabilities and autistic people through to directors of adult social services, organisations representing social workers, and social work professionals involved with the current system. They have been unanimous in their agreement that the Bill is deeply flawed, that there has not been adequate time for consultation, and that the proposals in the Bill could cause more problems than they solve.

The Secretary of State quoted a smattering of organisations; let me read him this list: the Relatives & Residents Association, Mencap, the National Autistic Society, Mind, Rethink, the Alzheimer’s Society, VoiceAbility, Disability Rights UK, POhWER, the British Institute of Human Rights, Sense, Liberty, Learning Disability England and Inclusion London have all called for the Bill to be paused so that further consultation can take place. But as we can see today, that call has not been heeded.

[Mr Dhesi]

Does my hon. Friend agree that, given that Sir Simon Wessely’s review has only just been published, the Government should consider pausing the Bill to look into the interplay between it and the recommendations on the Mental Health Act? Otherwise, we risk creating legislation that fits together very poorly.